Part 24 (1/2)
”Also, by the said act of 25 Edward I., (called _Confirmatio Chartarum_,) it is adjudged in parliament that the Great Charter and the Charter of the Forest shall be taken as the common law....
”They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, to the observation and keeping whereof, the king was bound and sworn.
”After the making of Magna Charta, and Charta de Foresta, divers learned men in the laws, that I may use the words of the record, kept schools of the law in the city of London, and taught such as resorted to them the laws of the realm, taking their foundation of Magna Charta and Charta de Foresta.
”And the said two charters have been confirmed, established, and commanded to be put in execution by thirty-two several acts of parliament in all.
”This appeareth partly by that which hath been said, for that it hath so often been confirmed by the wise providence of so many acts of parliament.
”And albeit judgments in the king's courts are of high regard in law, and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech of the law itself,) yet it is provided by act of parliament, that if any judgment be given contrary to any of the points of the Great Charter and Charta de Foresta, by the justices, or by any other of the king's ministers, &c., it shall be undone, and holden for naught.
”And that both the said charters shall be sent under the great seal to all cathedral churches throughout the realm, there to remain, and shall be read to the people twice every year.
”The highest and most binding laws are the statutes which are established by parliament; and by authority of that highest court it is enacted (only to show their tender care of Magna Carta and Carta de Foresta) that if any statute be made contrary to the Great Charter, or the Charter of the Forest, that shall be holden for none; by which words all former statutes made against either of those charters are now repealed; and the n.o.bles and great officers were to be sworn to the observation of Magna Charta and Charta de Foresta.
”_Magna fuit quondam magnae reverentia chartae._” (Great was formerly the reverence for Magna Carta.)--_c.o.ke's Proem to 2 Inst._, p. 1 to 7.
c.o.ke also says, ”All pretence of prerogative against Magna Charta is taken away.”--_2 Inst._, 36.
He also says, ”That after this parliament (_52 Henry_ III., in 1267) neither Magna Carta nor Carta de Foresta was ever attempted to be impugned or questioned.”--_2 Inst._, 102.[109]
To give all the evidence of the authority of Magna Carta, it would be necessary to give the const.i.tutional history of England since the year 1215. This history would show that Magna Carta, although continually violated and evaded, was still acknowledged as law by the government, and was held up by the people as the great standard and proof of their rights and liberties. It would show also that the judicial tribunals, _whenever it suited their purposes to do so_, were in the habit of referring to Magna Carta as authority, in the same manner, and with the same real or pretended veneration, with which American courts now refer to the const.i.tution of the United States, or the const.i.tutions of the states. And, what is equally to the point, it would show that these same tribunals, the mere tools of kings and parliaments, would resort to the same artifices of a.s.sumption, _precedent_, construction, and false interpretation, to evade the requirements of Magna Carta, and to emasculate it of all its power for the preservation of liberty, that are resorted to by American courts to accomplish the same work on our American const.i.tutions.
I take it for granted, therefore, that if the authority of Magna Carta had rested simply upon its character as a _compact_ between the king and the people, it would have been forever binding upon the king, (that is, upon the government, for the king was the government,) in his legislative, judicial, and executive character; and that there was no _const.i.tutional_ possibility of his escaping from its restraints, unless the people themselves should freely discharge him from them.
But the authority of Magna Carta does not rest, either wholly or mainly, upon its character as a compact. For centuries before the charter was granted, its main principles const.i.tuted ”the Law of the Land,”--the fundamental and const.i.tutional law of the realm, which the kings were sworn to maintain. And the princ.i.p.al benefit of the charter was, that it contained a _written_ description and acknowledgment, by the king himself, of what the const.i.tutional law of the kingdom was, which his coronation oath bound him to observe. Previous to Magna Carta, this const.i.tutional law rested mainly in precedents, customs, and the memories of the people. And if the king could but make one innovation upon this law, without arousing resistance, and being compelled to retreat from his usurpation, he would cite that innovation as a precedent for another act of the same kind; next, a.s.sert a custom; and, finally, raise a controversy as to what the Law of the Land really was.
The great object of the barons and people, in demanding from the king a written description and acknowledgment of the Law of the Land, was to put an end to all disputes of this kind, and to put it out of the power of the king to plead any misunderstanding of the const.i.tutional law of the kingdom. And the charter, no doubt, accomplished very much in this way. After Magna Carta, it required much more audacity, cunning, or strength, on the part of the king, than it had before, to invade the people's liberties with impunity. Still, Magna Carta, like all other written const.i.tutions, proved inadequate to the full accomplishment of its purpose; for when did a parchment ever have power adequately to restrain a government, that had either cunning to evade its requirements, or strength to overcome those who attempted its defence?
The work of usurpation, therefore, though seriously checked, still went on, to a great extent, after Magna Carta. Innovations upon the Law of the Land are still made by the government. One innovation was cited as a precedent; precedents made customs; and customs became laws, so far as practice was concerned; until the government, composed of the king, the high functionaries of the church, the n.o.bility, a House of Commons representing the ”forty s.h.i.+lling freeholders,” and a dependent and servile judiciary, all acting in conspiracy against the ma.s.s of the people, became practically absolute, as it is at this day.
As proof that Magna Carta embraced little else than what was previously recognized as the common law, or Law of the Land, I repeat some authorities that have been already cited.
Crabbe says, ”It is admitted on all hands that it (Magna Carta) contains nothing but what was confirmatory of the common law and the ancient usages of the realm; and is, properly speaking, only an enlargement of the charter of Henry I. and his successors.”--_Crabbe's Hist. of the Eng. Law_, p. 127.
Blackstone says, ”It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they mean the old common law which was established under our Saxon princes.”--_Blackstone's Introd. to the Charters._ See _Blackstone's Law Tracts_, Oxford ed., p. 289.
c.o.ke says, ”The common law is the most general and ancient law of the realm.... The common law appeareth in the statute of _Magna Carta_, and other ancient statutes, (which for the most part are affirmations of the common law,) in the original writs, in judicial records, and in our books of terms and years.”--_1 Inst._, 115 b.
c.o.ke also says, ”It (Magna Carta) was for the most part declaratory of the princ.i.p.al grounds of the fundamental laws of England, and for the residue it was additional to supply some defects of the common law.... They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, _to the observation and keeping whereof the king was bound and sworn_.”--_Preface to 2 Inst._, p. 3 and 5.
Hume says, ”We may now, from the tenor of this charter, (Magna Carta,) conjecture what those laws were of King Edward, (the Confessor,) which the English nation during so many generations still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of Magna Carta; and the barons who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the princ.i.p.al objects to which they had so long aspired.”--_Hume_, ch. 11.
Edward the First confessed that the Great Charter was substantially identical with the common law, as far as it went, when he commanded his justices to allow ”the Great Charter as the Common Law,” ”in pleas before them, and in judgment,” as has been already cited in this chapter.--_25 Edward_ I., ch. 1, (1297.)
In conclusion of this chapter, it may be safely a.s.serted that the veneration, attachment, and pride, which the English nation, for more than six centuries, have felt towards Magna Carta, are in their nature among the most irrefragable of all proofs that it was the fundamental law of the land, and const.i.tutionally binding upon the government; for, otherwise, it would have been, in their eyes, an unimportant and worthless thing. What those sentiments were I will use the words of others to describe,--the words, too, of men, who, like all modern authors who have written on the same topic, had utterly inadequate ideas of the true character of the instrument on which they lavished their eulogiums.
Hume, speaking of the Great Charter and the Charter of the Forest, as they were confirmed by Henry III., in 1217, says:
”Thus these famous charters were brought nearly to the shape in which they have ever since stood; and they were, during many generations, the peculiar favorites of the English nation, and esteemed the most sacred rampart to national liberty and independence. As they secured the rights of all orders of men, they were anxiously defended by all, and became the basis, in a manner, of the English monarchy, and a kind of original contract, which both limited the authority of the king and ensured the conditional allegiance of his subjects. Though often violated, they were still claimed by the n.o.bility and people; and, as no precedents were supposed valid that infringed them, they rather acquired than lost authority, from the frequent attempts made against them in several ages, by regal and arbitrary power.”--_Hume_, ch. 12.
Mackintosh says, ”It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by them.... For almost five centuries it was appealed to as the decisive authority on behalf of the people.... To have produced it, to have preserved it, to have matured it, const.i.tute the immortal claim of England on the esteem of mankind. Her Bacons and Shakspeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtues which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice; if, indeed, it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers.”--_Mackintosh's Hist. of Eng._, ch. 3.[110]